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2006 DIGILAW 2725 (PNJ)

Malook Singh v. Satnam Singh

2006-07-12

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. - This appeal has been filed against the order passed by the Addl. District Judge, Patiala dated 25.1.2003 allowing the defendant- appellant to lead evidence by producing certified copies of the order of the Assistant Collector Ist Grade, Samana and Collector, Patiala. Appellant/defendant was further allowed to lead additional evidence to prove the Will dated 31.11.1987 by permitting them to place on record the original registered Will dated 30.11.1987. 2. The brief facts leading to the filing of the present appeal are that the plaintiff-respondent filed a suit for joint possession claiming to be owner to the extent of 1/4 share of the property left with the deceased Hazara Singh and that defendant Nos. 3 and 10 were owner in possession to the extent of 1/4th share each and the remaining 1/4th share was owned by defendant Nos. 4 to 9 in equal share being legal representatives of deceased Amar Singh out of the share of Hazura Singh of the land mentioned in the suit. Challenge was also made to the orders passed by Assistant Collector Ist Grade, Samana dated 22.3.1996 and order of the Collector Patiala whereby mutation of inheritance of Hazura Singh was sanctioned in favour of the contesting defendant and the appellant before the learned Addl. District Judge, Patiala. It was also pleaded by the complainant as under :- "The parties are related to each other as following pedigree table :- 3. Hazura Singh brother of the plaintiff and defendant No. 3 and 10 and uncle of defendant No 4 to 9 died on 2.7.1992 unmarried and issueless leaving behind the defendant No. 3 to 10 as legal heirs and representatives. The defendant No. 1 and 2 are sons of defendant Nos. 3. As per Hindu Succession Act after the death of Hazura Singh plaintiff defendant No. 3 and 10 and Amar Singhs legal heirs i.e. Defendant No. 4 to 9 were entitled to inherit/succeed Hazara Singh to extent to 1/4th share each to plaintiff, defendant No. 3 and 10 and 1/4th share to defendant No. 4 to 9 in equal share being legal heirs and representative of Amar Singh. The mutation of inheritance was got recorded by the defendant No. 1 and 2 in connivance with defendant No. 3 Balkar Singh on the basis of false and fabricated will allegedly executed by Hazura Singh deceased. The mutation of inheritance was got recorded by the defendant No. 1 and 2 in connivance with defendant No. 3 Balkar Singh on the basis of false and fabricated will allegedly executed by Hazura Singh deceased. The mutation was contested and was sanctioned by the Assistant Collector Ist Grade Samana vide his order dated 22.3.1996 illegally in favour of the defendant Nos. 1 and 2 and the Collector Patiala also ordered for mutation in favour of defendant Nos. 1 and 2 which is illegal and arbitrary, and not binding upon the plaintiff and other defendant Nos. 3 to 10. The plaintiff and defendant Nos. 4 to 10 requested the defendant Nos. 1 to 3 admit the claim but they flatly refused to do so. The defendant No. 3 being father of defendant Nos. 1 and 2 connived with defendant Nos. 1 and 2 with intention to grab the share of the plaintiff and defendant Nos. 4 to 10 and further threatened to further alienate or transfer the land by way of exchange, sale, mortgage, gift etc. in favour of some other persons to which they have got no right, title or authority. Hence, this suit." 4. The suit was contested by defendant Nos. 1 and 3. Besides taking preliminary objections on merit, it was submitted as under :- "...... The Pedegree table is not correctly shown and is incomplete. One daughter of Balkar Singh has been ignored who is namely Rajwinder Kaur. It is wrong and denied that Hazura Singh executed a Registered Will in favour of the defendant Nos. 1 and 2 dated 28.11.1987 and on that basis of the said will the mutation has been sanctioned in favour of defendant Nos. 1 and 2. The said mutation No. 902 was hotly contested by the plaintiff and after due contest it was sanctioned in favour of the replying defendant Nos. 1 and 2. An appeal was filed by the plaintiff in the Court of Collector Patiala, District Patiala and the said appeal was dismissed. The mutation was recorded on the basis of will validly executed in favour of the defendant Nos. 1 and 2 and the said mutation was up-held by the Collector, Patiala, District Patiala in appeal. The Khasra-girdawaries are in favour of the replying defendants. Hence, prayed for dismissal of the suit." On the pleadings of the parties the following issues were framed :- "1. 1 and 2 and the said mutation was up-held by the Collector, Patiala, District Patiala in appeal. The Khasra-girdawaries are in favour of the replying defendants. Hence, prayed for dismissal of the suit." On the pleadings of the parties the following issues were framed :- "1. Whether the plaintiff, defendant Nos. 3, 10 and Lrs of Amar Singh are owners to the extent of 1/4th share each out of the share of Hazura Singh deceased ? OPA. 2. Whether the plaintiff is entitled to joint possession to the extent of 1/4th share out of share of Hazura Singh ? OPP 3. Whether Hazura Singh executed any Will dated 30.11.1987 in favour of defendant Nos. 1 and 2 ? OPP 4. Whether the suit of the plaintiff is false, frivolous and vexatious to the knowledge of the plaintiff ? OPD 5. Relief." Thereafter on 13.9.2001 the following issues were framed as additional issues :- "1-A. Whether the plaintiff is entitled for declaration as prayed for ? OPP 1-B. Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP" On issue No. 3, the Trial Court held that :- "From my above discussion, I come to the conclusion that the alleged will dated 30.11.1987 executed by Hazura Singh in favour of the defendant Satnam Singh and Gurnam Singh has not been proved. The defendant has examined Ranjit Singh one of the attesting witness of the will but the statement of Ranjit Singh failed to prove the execution of the will. As per defendants case the above said will has been registered before Sub Registrar Samana but Ranjit Singh while appearing as DW-3 in the Court has not stated that they had appeared before the office of Sub-Registrar, Samana at the time of execution of the Will and the Sub-Registrar had read over the will to Hazura Singh and he marked his thumb impression after admitting it correct. Ranjit Singh failed to prove that Hazura Singh marked his thumb impression on the will after admitting it correct. Moreover, Ranjit Singh has further stated that Satnam Singh and Gurnam Singh beneficiary of the will had accompanied time at the time of execution of the will. It also creates doubt and suspicion regarding the execution of the will that beneficiary Satnam Singh and Gurnam Singh were present at the time of execution of the Will. Moreover, Ranjit Singh has further stated that Satnam Singh and Gurnam Singh beneficiary of the will had accompanied time at the time of execution of the will. It also creates doubt and suspicion regarding the execution of the will that beneficiary Satnam Singh and Gurnam Singh were present at the time of execution of the Will. Moreover, there is no document at all on the file to prove that Hazura Singh was residing with Balkar Singh. No ration card or voter list has been produced by the defendants to prove that Hazura Singh was residing with them. It is also admitted that one of the beneficiary of the will namely Satnam Singh is serving in the army. As such that due to his job he had not served the deceased Hazura Singh. In these circumstances, there is no reason to execute the will in favour of Satnam Singh and Gurnam Singh by deceased Hazura Singh. Ranjit Singh one of the attesting witness stated in his examination-in-Chief that Hazura Singh has executed will in favour of his nephew Satnam Singh. He did not state that will has been executed in favour of Gurnam Singh also. Moreover, as per statement of PW-1 Malook Singh and PW Kirpal Singh, Hazura Singh was not residing with Balkar Singh. All the brothers of Hazura Singh were serving to him. Hence, I came to the conclusion that the alleged will dated 30.11.1987 executed by Hazura Singh in favour of Harnam Singh and Satnam Singh is surrounded by doubt and suspicion. The defendant has not even produced certified copy of the alleged will on the file. As such Hazura Singh had not executed any will dated 30.11.1987 in favour of defendant Nos. 1 and 2. The relationship between the plaintiff and defendant Nos. 3 and 10 and Lrs. Amar Singh are no doubt admitted by the parties. As the plaintiff Malook Singh and defendant No. 3 Balkar Singh and deceased Amar Singh are brother of deceased Hazura Singh and deceased No. 10 Ind Kaur is sister of deceased Hazura Singh. So after the death of deceased Hazura Singh all four legal heirs namely plaintiff, defendant Nos. 3 and 10 and defendant Nos. 4 to 9 LRs of deceased Amar Singh pre-deceased brother of deceased Hazura Singh are only legal heirs of Hazura Singh. So after the death of deceased Hazura Singh all four legal heirs namely plaintiff, defendant Nos. 3 and 10 and defendant Nos. 4 to 9 LRs of deceased Amar Singh pre-deceased brother of deceased Hazura Singh are only legal heirs of Hazura Singh. They are owner to the extent of 1/4th share each of the share of deceased Hazura Singh. So, being legal heir of deceased Hazura Singh the plaintiff is also entitled to joint possession to the extent of 1/4th share each of the share of deceased Hazura Singh. As such all these issues are decided in favour of the plaintiff and against the defendant." Accordingly, issue Nos. 1 to 3 were decided in favour of appellant. On issue No. 1, the learned trial Court was pleased to hold that the Will dated 30.11.1987 was not proved and accordingly the order of mutation in favour of respondent Nos. 1 and 2 before this Court was also set aside and accordingly the suit filed by the plaintiff was decree. 5. Respondent Nos. 1 and 2 herein filed the appeal before the learned lower Appellate Court against the judgment and decree and during the pendency of the said appeal, an application under Order 41 Rule 27 CPC was made. Thereafter, another application was made under Order 41 Rule 27 CPC to place on record the original will executed in favour of the defendant Nos. 1 and 2. The learned lower appellate Court has allowed the said application and by way of impugned order set aside the judgment and decree of the trial Court and remanded the case back with the following observations :- (i) Opportunities to lead additional evidence to defendant- appellants will be afforded for production of certified copies of orders of Assistant Collector Ist Grade, Samana and Collector, Patiala. Trial Court should afford opportunity to them to place original will on record which is lying on record of present appeal tagged along with application dated 8.1.2003. Trial Court should afford opportunity to them to place original will on record which is lying on record of present appeal tagged along with application dated 8.1.2003. (ii) Trial Court shall afford opportunity to defendant-appellants to lead additional evidence to prove will dated 30.11.1987 by allowing them to place on record original registered Will of Hazura Singh dated 30.11.1987; (iii) After evidence of contesting defendant so led trial Court shall afford opportunities to plaintiff for leading rebuttal evidence; (iv) After completion of such exercise trial Court should re-decide all the issues in accordance with law; (v) Contesting defendants are at liberty to either collect the original Will against proper identification and verification in accordance with law or they can summon the record of appeal for producing original Will on record of civil suit." 6. Ms. Puja Sharma, learned counsel for the appellant has vehemently argued that the order passed by lower Appellate Court cannot be sustained as respondent Nos. 1 and 2 had failed to comply with the provisions of Order 41 Rule 27 CPC. Learned counsel submits that the Appellate Court can direct the additional evidence only on satisfaction of the following conditions:- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined. 7. The contention of the learned counsel is that an attempt has been made by the respondents to fill up the lacuna in their case as they failed to produce the will in the trial Court to prove the same as per provisions of the Evidence Act. 7. The contention of the learned counsel is that an attempt has been made by the respondents to fill up the lacuna in their case as they failed to produce the will in the trial Court to prove the same as per provisions of the Evidence Act. She made reference to orders of the Assistant Collector Ist Grade, Samana, as well as Collector Patiala, passed in the mutation proceedings to contend that the original will was not produced before the revenue Authorities as it was specifically noted in the order of the Assistant Collector Ist Grade, Samana, as under :- "The witness does not identify the Will as the original will has not been exhibited. Moreover, during the execution of the will, the interested party was also present as stated by Balkar Singh". 8. It has further been noticed that a specific contention was raised that the original will was not exhibited and, therefore, the will was surrounded by suspicious circumstances and, therefore, it has to be ignored. Similarly, the Collector, Patiala, in his order noticed as under :- ".... the original will was not exhibited on the file. The appellant in this case happens to be the brother of the deceased and the respondents are nephews of the deceased." While accepting the will, the learned Collector noticed that certified copy of the will was on record and it was not necessary that the original will be exhibited in this Court. The reason for this was that the proceedings before the Revenue Court were summary in nature. The submission of the learned counsel is that the jurisdiction exercised by the lower Appellate Court was with material irregularity and by passing impugned order, the respondent Nos. 1 and 2 have been allowed to fill in the lacuna in their case. 9. Ms. Sonia G. Singh, learned counsel appearing on behalf of the respondents on the other hand has submitted that the original will was produced through the persons summoned from the Revenue Authorities. However, on coming to know that the original Will was not on the file of the case, an application for additional evidence was moved to produce the same and prove by leading evidence. The contention of the learned counsel for the respondents was that the Will being a very important document, was required for just decision of the case. However, on coming to know that the original Will was not on the file of the case, an application for additional evidence was moved to produce the same and prove by leading evidence. The contention of the learned counsel for the respondents was that the Will being a very important document, was required for just decision of the case. It was next submitted by learned counsel for the respondents that the learned Appellate Court below has exercised its jurisdiction vested in it in law and has permitted respondent Nos. 1 and 2 to lead additional evidence and thus, there is no justification for this Court to interfere with the said order. The learned Lower Appellate Court decided the application on the presumption that the Will has been removed from the file of the Court. However, there is nothing on record to show as to whether the Will was ever produced and under what circumstances the same was not retained by the Court. It was also noticed by the Lower Appellate Court that the file regarding mutation No. 902 in which the original Will was placed was brought to the Court by Shri Charan Singh, Office Kanungo and, therefore, it was the duty of the Court to have retained the said record. The learned Lower Appellate Court observed that by permitting the revenue officer to take back the file, a lapse was committed by it and, therefore, it was necessary to allow respondent Nos. 1 and 2 to place the original Will on record and prove the same. Under these circumstances, the Court allowed the appeal and passed the directions referred to above. 10. I have considered the arguments of the learned counsel for the parties and find that the impugned order cannot be sustained. It is not a case where the trial Court has refused to admit the evidence which was required to be admitted. Admittedly, respondent Nos. 1 and 2 have failed to prove the will in accordance with law nor the original or certified copy of the will was produced. It is further not the case of the appellants that they could not produce the will in spite of due diligence or it was not within the knowledge or could be produced with due diligence. 1 and 2 have failed to prove the will in accordance with law nor the original or certified copy of the will was produced. It is further not the case of the appellants that they could not produce the will in spite of due diligence or it was not within the knowledge or could be produced with due diligence. Under Clause (b) of Order 41 Rule 27 CPC, the Appellate Court can direct the production of any document or witness if it thinks necessary to enable it to pronounce judgment or for substantial cause. The facts stated above do not disclose that the production of the documents or witnesses were necessary to enable it to pronounce judgment. In the present case, respondent Nos. 1 and 2 had failed to lead evidence to prove the Will in accordance with the provisions of the Evidence Act. Now it has to be seen whether the production of the Will and other documents was necessary to advancement of substantial cause. The reading of the judgment of the trial Court shows that issue No. 3 was not only decided for want of production of the Will, but also on the ground that the same was shrouded by suspicious circumstances. Not a word has been said about this finding by the learned lower Appellate Court. The learned lower Appellate Court proceeded on the presumption that the trial Court had committed an error in not retaining the Will in its custody after Shri Charan Singh was examined. This finding is not borne out from any record. It is merely a presumption. It is well settled law that when the evidence is available at the time of recording of the evidence and the same could have been produced by the party, the application under Order 41 Rule 27 CPC cannot be allowed subsequently to fill a gap and lacuna in the case. The present application was moved to overcome the findings recorded by the trial Court. Thus, prima facie, in the present case, respondent Nos. 1 and 2 want to fill up the lacuna. The parties cannot be allowed to invoke the provisions of Order 41 Rule 27 CPC to produce certain documents so as to tilt the decision in its favour which they failed to produce in the trial Court. Thus, prima facie, in the present case, respondent Nos. 1 and 2 want to fill up the lacuna. The parties cannot be allowed to invoke the provisions of Order 41 Rule 27 CPC to produce certain documents so as to tilt the decision in its favour which they failed to produce in the trial Court. In view of what has been stated above, I find that judgment dated 25.1.2003 passed by the lower Appellate Court is not in consonance with the provisions of Order 41 Rule 27 CPC and the same cannot be sustained. Accordingly, the appeal is allowed, judgment dated 25.1.2003 is set aside and the case is remanded back to the learned Lower Appellate Court to decide the appeal on merit in accordance with law. Appeal allowed.